Ivan Janovic v Prosecutor General's Office Lithuania
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cranston,Lord Justice Jackson |
| Judgment Date | 25 March 2011 |
| Neutral Citation | [2011] EWHC 710 (Admin) |
| Date | 25 March 2011 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/9061/2010,CO/9061/2010 |
[2011] EWHC 710 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Before : Lord Justice Jackson
Mr Justice Cranston
Case No: CO/9061/2010
Ben Cooper (instructed by Sonn MacMillan Walker) for the Appellant
Ben Lloyd (instructed by Crown Prosecution Service) for the Respondent
Hearing dates: 10 March 2011
Mr Justice Cranston:
Introduction
This is an appeal under section 26 of the Extradition Act 2003 from a decision of the City of Westminster Magistrates' Court that the appellant be extradited to Lithuania for a criminal prosecution. The novel feature of the case is that the Lithuanian request is in relation to a rape that the appellant is alleged to have committed in Belarus in April 2000 and Belarus has transferred the case to Lithuania. Lithuania, but not Belarus, has been designated a Part 1 territory under the Extradition Act 2003: Extradition Act 2003 (Designation of Part 1 Territories) Order 2003 (SI 2003, 3333). The appellant contends that the district judge ought to have found that the extradition proceedings pursuant to the European Arrest Warrant should be stayed as an abuse of process, that his extradition would not be compatible with Articles 3 and 6 of the European Convention on Human Rights ("the Convention" or "ECHR"), and that by reason of the passage of time it would be unjust or oppressive to extradite him. The appellant also seeks to agitate before us an additional ground, that no extradition offence has been made out.
Background
The appellant is 32 years old. He was born in the region of Minsk, Belarus, but on his account left when he was 16 years old to live with his mother in Lithuania, when his father remarried. He has Lithuanian nationality but is a Russian, not a Lithuanian, speaker. He describes his family as Roma. He came to this country in 1999, overstayed his tourist visa, was removed to Lithuania but then returned here once Lithuania became a member of the European Union in 2004. He married a Polish citizen, also a Roma, and has 2 young children, both British nationals.
On 27 October 2009, a district court in Lithuania issued a domestic warrant for the appellant's arrest. The European Arrest Warrant at issue in this appeal followed on 16 December 2009, certified by the Serious Organised Crime Agency on 6 January 2010. In summary it explains that the appellant, a Lithuanian national, is wanted by the Lithuanian authorities to stand trial for an offence of rape alleged to have been committed in April 2000, when he was 21 years old, in the region of Minsk, Belarus; that criminal proceedings were initiated initially in Belarus; and that as a result of the appellant having left Belarus the criminal prosecution was transferred to Lithuania pursuant to a bilateral agreement between the two States.
At box (e) of the warrant the following information is provided in relation to the offence:
"During the night between 22 and 23 April 2000, in the region of Minsk, Byelorussian Republic, acting under influence of alcohol, acting under pre-agreement and in association with M Janovic, having used physical violence, Ivan Janovic dragged the victims, A Strelkova and J Kiricenko, going from the youth centre "Yunost" to the forest, in the direction of Zaslavski water storage, at the distance of 900 metres from the aforementioned youth centre, hit on victims' various body parts with hands and legs, thus making bodily injuries which resulted in short term health impairment, and having neutralised their resistance, he and M Janovic in turn raped A Strelkova and J Kiricenko."
The warrant then continues with an explanation of the criminal proceedings:
"Criminal proceedings against Ivan Janovic were initiated in the Byelorussian Republic. As the suspect, the Lithuanian citizen, Ivan Janovic, departed to Lithuania, on the basis of bilateral agreement between the Republic of Lithuania and the Byelorussian Republic on legal assistance and legal relations in the civil, family and criminal cases, on 28 March 2005 criminal prosecution of the person in question for the above-mentioned criminal offence was transferred to the authorities of the Republic of Lithuania."
The warrant sets out the offence of rape pursuant to article 149 of the Lithuanian Criminal Code. The maximum sentence is 10 years.
Effectively there is no further information in the warrant. However, the Lithuanian prosecutor has provided a chronology of events from the date of the alleged offence to the issue of the European Arrest Warrant. It indicates that the victims gave statements and were forensically examined on 25 April 2000, two days after the alleged offences, but that in late June of that year the preliminary investigations were suspended due to a failure to identify suspects. However, in August the following year the investigation was renewed when Milan Janovic made his "honest admission" to the offence and named what he described as his cousin, the appellant, as jointly responsible. A warrant was issued but the appellant could not be found. However, Milan Janovic was tried and convicted of rape in 2002, having being found sane some 3 months earlier, and sentenced to 8 years imprisonment. In early 2005 the preliminary investigation was renewed. The Lithuanian authorities indicated that the appellant lived in that country. The municipality reported that the address at which he was registered in Lithuania had had no buildings standing for some time. It also said that the appellant crossed the border often. In March 2005 Belarus requested Lithuania to assume carriage of the case, which they did. In 2009 the Lithuanian police indicated that the appellant was in the UK and ultimately the European Arrest Warrant was issued.
Further information is available about the criminal proceedings in Belarus in what is described as a "legal opinion/advice" prepared for the appellant by a lawyer in Lithuania. She is Inga Abramaviciute, who has been practising law there since 2004. She has had access to the evidence which was gathered in Belarus, which now forms the prosecution case in Lithuanian. There is the written testimony of the two women during the pre-trial investigation and in court, what Milan Janovic said in his confession, during the pre-trial investigation and in court, and the medical evidence both about the women and Milan Janovic's mental health. From examining the papers Ms Abramaviciute explains that on 15 August 2001 Milan Janovic made his "sincere confession" to the police but it was not clear where and in what circumstances it was made. She comments that "sincere confession" "is an action, which used to be the way in Lithuania [presumably, in the Soviet era], how operational officers legalize (sic) illegal interrogation by constraining and intimidation of the particular person". Ms Abramaviciute notes that the following day, 16 August, Milan Janovic, accompanied by his lawyer, was interrogated as a suspected person. Milan Janovic described how he and his "brother", the appellant, were inebriated and had sexual intercourse with the women, after beating them. That same day one of the women identified Milan Janovic as one of the perpetrators. On 9 October 2001 there was a psychiatric report that Milan Janovic suffered "mental retardation [imbeciles]". At the trial, Ms Abramaviciute records, Milan Janovic denied rape and said that he had confessed because the police had used violence. Also at the trial one of the women said she was uncertain that the perpetrator of the rape was Milan Janovic and the other had nothing to say about who perpetrated it.
To complete the chronology, the appellant was arrested in this country on 20 February 2010, pursuant to the European Arrest Warrant. There were a number of hearings before the City of Westminster Magistrates' Court. In response to some of the appellant's points being advanced before that court the Lithuanian prosecutor wrote on 22 June 2010:
"… [S]ince 1 May 2004, the Republic of Lithuania has been a Member State of the European Union, which conforms to the requirements of a Member State. The Republic of Lithuania is a democracy of the rule of law. The criminal laws of the Republic of Lithuania grant all guarantees to a suspected person, which are provided in the Convention for the Protection of Human Rights and Fundamental Freedoms. This Convention was ratified in the Republic of Lithuania and came into force on 20 June 1995."
On 20 August 2010 District Judge Wickham ordered the appellant's extradition after rejecting submissions on his behalf, submissions which are echoed in the appeal before us.
Expert evidence
Before the judge the appellant advanced a certain amount of what was described as expert evidence. That evidence has been supplemented for the hearing in this court. For the respondent Mr Lloyd, very fairly, was content for us to consider the material de bene esse given the circumstances.
I have already referred to the opinion/advice of Ms Abramaviciute, which was before the judge. As well as assisting on the chronology, Ms Abramaviciute explains that the treaty under which the case was transferred from Belarus to Lithuania is dated 20 October 1992. Under article 64 of that treaty there is no extradition between the two countries but a transfer of cases. That is why this case was transferred, and why Belarus did not ask for the extradition of Ivan Janovic from Lithuania. Ms Abramaviciute adds a comment about the prejudice Roma people face in Lithuania.
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